BY EITHER CLICKING TO ACCEPT THESE TERMS AND CONDITIONS OR EXECUTING A PARTNER AGREEMENT YOU (“Participant”) ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO AGREE TO THEM ON BEHALF OF PARTICIPANT AND UNDERSTAND AND AGREE THAT PARTICIPANT BE BOUND BY THEM.
The following terms shall have a defined meaning as used in these Terms and Conditions:
(a) “DataCore Provided Resources” means all resources of any nature whatsoever (whether tangible, intangible, human or otherwise) that are provided or made available to Participant, in person, physically, electronically, remotely, virtually (such as the DataCore Virtual Training Authorized Lab environment), by download or otherwise, directly or indirectly, by, through, or pursuant to arrangements made by, DataCore for use in connection with a Partner Agreement or the Participant Activity, including but not limited to all Proprietary Materials, DataCore review or approval of testing, planning, implementation or other materials provided by Participant, advice, instruction, testing, training, equipment, software, goods, services, or information.
(b) “Distributor” means a distributor authorized by DataCore to distribute Software Products and Services in the territory in which the Participant Activity is to be conducted.
(c) “End User” means a licensee of Software Product who acquires such product for use rather than distribution or sublicensing.
(d) “Participant Activity” means: (i) the activities expressly identified in a Partner Agreement as the “Authorized Activity”; and (ii) if the Participant is an individual that has received a DataCore certification (“Certification”) as a DataCore Certified Implementation Engineer (DCIE) or other formal DataCore certification, the activities of holding one’s self out as having been so certified but only for so long as the Certification remains current and has not lapsed or been withdrawn.
(e) “Partner Agreement” means any agreement between DataCore and Participant into which these Terms and Conditions are expressly incorporated by reference in such agreement.
(f) “Proprietary Materials” means all DataCore publications, software and software code, the Trademarks (as defined below), documentation, course or other training materials, white papers, implementation and test plan materials, marketing materials, whether or not subject to copyright, provided by DataCore for Participant’s use in connection with the Participant Activity, and all derivative works thereof whether or not authored by DataCore.
(g) “Services” means those DataCore Software Product support services, product training and professional services then made generally available by DataCore for resale to End Users in the territory in which the Participant Activity is to be conducted, as determined by DataCore in its sole discretion, as they shall exist from time to time.
(h) “Software Product” means the object code version of the DataCore software products then made generally available by DataCore for sale or resale to End Users in the territory in which the Participant Activity is to be conducted, as they shall exist from time to time (“Software”), and related documentation provided by DataCore for use by End Users (“Documentation”).
(i) “Terms and Conditions” means these DataCore General Terms and Conditions for Program Participation and Use of DataCore Provided Resources.
2 ADDITIONAL OBLIGATIONS OF PARTICIPANT. The following obligations are in addition to and not in lieu of any other obligations of Participant to DataCore:
(a) Restrictions. Participant acknowledges that the Software and Proprietary Materials contain confidential or proprietary information of DataCore, and agrees not to disassemble, decompile or otherwise attempt to reverse engineer the Software or Proprietary Materials in whole or in part, except to the extent expressly permitted under applicable law notwithstanding such prohibition. Participant shall have no rights with respect to the Software or the Proprietary Materials or to their use except as expressly set forth herein, in the Partner Agreement, or in a separate license agreement under which any are specifically identified as licensed by DataCore to Participant. Participant shall not reproduce, translate, modify or create derivative works of the Software or Proprietary Materials, or distribute the Proprietary Materials, without DataCore’s express prior written consent except as expressly set forth herein or in the Partner Agreement.
(b) Marketing. Participant agrees that its marketing and advertising efforts will be of high quality, in good taste, and will preserve the professional image and reputation of DataCore and the Software Products. Participant agrees to include in all such advertising all applicable copyright and trademark notices of DataCore in accordance with the trademark license set forth below.
3 USE OF TRADEMARKS.
(a) Trademark License. DataCore hereby grants to Participant a non-exclusive, non-transferable license to use “DataCore” (both the name and in the stylized form used by DataCore), the applicable Software Product trademarks, and the logos for any Certification held by Participant (the “Trademarks”) in connection with Participant’s advertising and promotion of the Participant Activity. shall not use any mark other than the Trademarks to identify the Software Products or Services, except as expressly authorized by DataCore in writing, which authorization shall, notwithstanding anything to the contrary, be revocable by DataCore in its sole and absolute discretion at any time upon written notice to Participant.
(b) Quality. Participant agrees that the nature and quality of all products and services it supplies in connection with the Trademarks shall be consistent with generally accepted industry standards, but of no less quality than for its own or other products it resells. Participant agrees to cooperate with DataCore in facilitating DataCore’s monitoring and control of the nature and quality of such products and services, and to supply DataCore with specimens of use of the Trademarks upon request.
(c) Form of Use. All use of the Trademarks must strictly comply with applicable law. Participant shall comply with any requirements established by DataCore concerning the style, design, display and use of the Trademarks, including correct use of the ® or TM symbols, unless commercially impractical, with any advertising or other promotional materials that display the Trademarks.
4 OWNERSHIP OF PROPRIETARY RIGHTS.
Participant agrees that all use of the Trademarks by Participant in connection with the Software Products and Services or the Participant Activity shall inure solely to the benefit of DataCore, and that nothing in these Terms and Conditions or the Partner Agreement shall give Participant any right, title or interest in the Trademarks other than the right to use the Trademarks in accordance with these Terms and Conditions. Participant will take all reasonable measures to protect DataCore’s proprietary rights in the Software Products and the Proprietary Materials, and will not remove or obscure any proprietary notices on or in the Software Products or the Proprietary Materials. Except as provided herein, Participant is not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), database rights, or any other rights, franchises or licenses. Participant shall not (a) do anything that might harm the reputation or goodwill of the Trademarks; (b) take any action inconsistent with DataCore’s ownership of the Trademarks; (c) challenge DataCore’s rights in or use of the Trademarks; or (d) use or attempt to register any of the Trademarks or any mark or logo substantially similar thereto in any jurisdiction or country. Without limiting the above, if at any time Participant acquires any rights in, or trademark registrations or applications for, any of the Trademarks by operation of law or otherwise in any country or jurisdiction, Participant will immediately, and at no expense to DataCore, assign such rights, registrations, or applications to DataCore, along with any and all associated goodwill. Participant agrees that its obligations under this Section shall survive termination of these Terms and Conditions.
5 NO WARRANTIES; INDEMNITY.
(a) Software Products, Services and DataCore Provided Resources. DataCore warrants the Software Products and Services to End Users under the terms set out in the license and/or Service agreements applicable to such Software Products and Services. THESE LIMITED WARRANTIES ARE EXCLUSIVE. ALL SOFTWARE PRODUCTS, SERVICES AND DATACORE PROVIDED RESOURCES ARE PROVIDED BY DATACORE, AND PARTICIPANT ACCEPTS THEM,“AS IS” AND “WITH ALL FAULTS.” DATACORE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST HIDDEN DEFECTS TO THE FULLEST EXTENT PERMITTED BY LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DATACORE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS. DATACORE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET PARTICIPANT’S REQUIREMENTS OR THAT USE OF THE SOFTWARE PRODUCTS, SERVICES, DATACORE PROVIDED RESOURCES, OR PARTICIPANT ACTIVITY WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF VARIATIONS FROM ANY DOCUMENTATION. Some jurisdictions do not allow exclusions of or limitations on the duration of implied warranties, so the above exclusion may not apply to participant. To the extent that an implied warranty or condition is created and cannot be disclaimed as provided above pursuant to applicable law, such implied warranty or condition is limited to the greater of thirty (30) days from delivery or the minimum period required by law. .
(b) General Indemnity. Participant agrees to indemnify and hold DataCore harmless from all liability, damages and costs (including attorneys’ fees) resulting from claims made against DataCore arising from or in connection with the Participant Activity or Participant’s failure to comply with its obligations under a Partner Agreement or these Terms and Conditions.
(a) Notwithstanding anything to the contrary, DataCore shall have the right at any time to terminate any Partner Agreement, and to otherwise require the Participant to stop engaging in the Participant Activity, upon thirty (30) days prior written notice to the other party; provided, however, advance notice shall not be required if DataCore determines, in its sole and absolute discretion, that Participant has breached any of its obligations to DataCore under the Partner Agreement, these Terms and Conditions or any other agreement. Each of the parties has considered its expenditures in performing and preparing for performance of the Partner Agreement and possible losses resulting from its termination. It is expressly understood that this right of termination is absolute and DataCore shall not be liable to Participant for damages or otherwise arising from termination in accordance with these Terms and Conditions. Immediately upon any such termination or expiration, Participant shall immediately cease engaging in the Participant Activity, return to DataCore all DataCore Provided Resources and other property of DataCore provided by or through DataCore without charge in connection with such Participant Activity, and (except as expressly authorized by another agreement with DataCore that then remains in effect) discontinue all use of the Proprietary Materials and the DataCore Provided Resources. Regardless of the reason for or method of such termination or expiration, Participant shall be entitled to any compensation, damages or payments for any loss of goodwill, prospective profits, or anticipated sales in connection with such termination or expiration, nor shall Participant be entitled to reimbursement in any amount in connection with such termination or expiration for any training, advertising, market development, investments or other costs that shall have been expended by Participant before the such termination or expiration. Participant hereby waives its rights under applicable laws for any such compensation, reimbursement, or damages.
(b) Sections 1, 2(a), 4,5,6,7 and 8 shall survive the termination of this these Terms and Conditions.
7 LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL DATACORE OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, SAVINGS, BUSINESS, GOODWILL OR DATA, COST OF COVER, RELIANCE DAMAGES OR ANY OTHER SIMILAR DAMAGES OR LOSS, EVEN IF DATACORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. EXCEPT AS LIMITED BY APPLICABLE LAW, DATACORE’S AND ITS SUPPLIERS’ TOTAL LIABILITY UNDER THESE TERMS AND CONDITIONS, THE PARTNER AGREEMENT OR OTHERWISE SHALL IN NO EVENT EXCEED $1000. THE LIABILITY LIMITATIONS SET FORTH IN THESE TERMS AND CONDITIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THESE TERMS AND CONDITIONS OR THE PARTNER AGREEMENT OR THE INVALIDITY OF ANY OTHER PROVISION IN THESE TERMS AND CONDITIONS OR THE PARTNER AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO PARTICPANT.
(a) Notices. All notices, consents, waivers and other communications required or permitted by this Agreement (“Notices”) shall be in writing and shall be deemed given to a party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by facsimile with confirmation of transmission by the transmitting equipment; or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the addresses or facsimile numbers set forth above or, for Notices to Participant (which Notices may be given by email instead of the other specified means and shall be deemed given when sent), to the address, email address and facsimile number provided by Participant in its application, request or registration for the Participant Activity (or to such other address or facsimile number as a party hereto may designate to the other party by notice). If notice is sent to DataCore, it shall be sent to the attention of Contracts Administration.
(b) Improper Inducements. Participant agrees that it and its owners, directors, officers, employees, agents, partners and vendors have not and will not directly or indirectly pay, offer, promise to pay, or authorize the payment of, any money or anything of value to any person to improperly obtain, retain, or direct business or secure an improper advantage in connection with Software Products or Services. Participant also agrees to implement adequate procedures to prevent a breach of this Section. Should Participant become aware of a breach or potential breach of this Section, Participant shall immediately notify DataCore and promptly take action against those involved. Participant certifies that none of its owners, directors, officers, employees, agents, or partners has been convicted of or pleaded guilty to bribery, fraud or related charges. In the event that DataCore has reason to believe that a breach of this Section has occurred or may occur, DataCore may at its discretion, and without liability to Participant, do any or all of the following; terminate the Participant Agreement, these Terms and Conditions and any Certification immediately and/or withhold delivery of any goods or services or any payments otherwise due and payable under this Agreement until it receives confirmation to its satisfaction that no breach has occurred or will occur. Participant shall indemnify and hold DataCore harmless against any and all related claims, losses or damages. Participant agrees to keep accurate books, accounts, and records related to its DataCore business and to allow DataCore, or its independent audit firm, reasonable access to these to verify compliance with this Section.
(c) Force Majeure. Neither party shall be in default by reason of any failure to perform any obligation (excluding any obligation to pay money) due to unforeseen circumstances or to causes beyond such party’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, failure to obtain export licenses or shortages of transportation, facilities, fuel, energy, labor or materials.
(d) Assignment. Participant may not assign its rights or obligations under the Partner Agreement or these Terms and Conditions without the prior written approval of DataCore, which may be withheld or conditioned in DataCore’s sole discretion, and any unauthorized assignment shall be void.
(e) Waiver. No delay or failure by either party to enforce any right under the Partner Agreement or these Terms and Conditions shall constitute a waiver of that right or any other right. A waiver of any breach or default under the Partner Agreement or these Terms and Conditions shall not constitute a waiver of any other right for subsequent breach or default.
(f) Severability. If any provision of the Partner Agreement or these Terms and Conditions is found illegal or unenforceable, it will be modified to the minimum extent required to make it legal and enforceable, and the legality and enforceability of the other provisions of the Partner Agreement and these Terms and Conditions will not be affected.
(g) Injunctive Relief. It is expressly agreed that Participant’s violation of Sections 2(a) (Restrictions), 3 (Use of Trademarks), or 4 (Ownership of Proprietary Rights) will cause irreparable harm to DataCore and that a remedy at law would be inadequate. Therefore, without limiting DataCore’s remedies that may be available at law, DataCore shall be entitled to an injunction or other equitable remedies in the event of any threatened or actual violation of any such provision.
(h) Relationship. Neither these Terms and Conditions, the Partner Agreement, the Participant Activity, nor any terms and conditions associated therewith, shall be construed as creating a partnership, joint venture, franchise or agency relationship between DataCore and Participant. Participant agrees that it shall inform its customers that Participant is an independent business from DataCore, and shall not hold itself out as an agent of DataCore, or attempt to bind DataCore to any third-party agreement.
(i) Government Contracts. All Software Products delivered to the U.S. Government are “commercial computer software” as defined in DFARS 252.227-7014(a)(1), and are provided subject to the manufacturer’s standard commercial end user license, pursuant to FAR 12.212(a)). If applicable, such Software Products are provided with “restricted rights”, with use, duplication, and disclosure by the U.S. Government restricted as provided in either DFARS 252.227-7013(c)(1)(ii) (OCT 1988) or FAR 52.227-14 (ALT III) (JUN 1987). Participant assumes responsibility to ensure that all deliverable Software Products are marked with the required restricted rights notice. Manufacturer is DataCore Software Corporation.
(j) Export Controls. Participant acknowledges that the Software Products and certain DataCore Provided Resources are subject to export controls imposed by the U.S. Export Administration Act of 1979, as amended (the “Act”), and the regulations promulgated there under. Participant will not export or re-export (directly or indirectly) the Software Products, DataCore Provided Resources, or associated technical data without complying with the Act and the regulations thereunder and will not export or re-export (directly or indirectly) to embargoed destinations.
(k) Governing Law; Disputes. The laws of the State of Florida shall govern this Agreement. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by a panel of three (3) arbitrators administered by the American Arbitration Association under Commercial Arbitration Rules. The majority decision of the arbitration shall be final and binding upon the parties. The arbitration hearing shall take place in Broward County, Florida. The prevailing party shall be entitled to recover cost and attorney’s fees. In a no event shall punitive damages be awarded. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Discovery shall be limited to written requests for information and documents, and any dispute regarding discovery shall be conclusively determined by the chair of the arbitration panel. Except to enforce the award, the parties shall treat the existence, content or result of arbitration as confidential information under this agreement. Either party may apply to any court of competent jurisdiction for injunctive relief without waiver or breach of this provision.
(l) Choice of Language. The parties confirm that it is their wish that the Partner Agreement (if any) and these Terms and Conditions, as well as all other documents relating hereto, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s¢y rattachent, soient rédigés en langue anglaise. The English language version of the Partner Agreement will control in all respects, and all other versions are for convenience only and are not binding.
(m) Entire Agreement. The Partner Agreement (if any), any document or agreement incorporated by reference into the Partner Agreement (if any) and these Terms and Conditions set forth the entire agreement between the parties regarding the subject matter, and supersedes all prior and contemporaneous communications. The making and delivery of the Partner Agreement and these Terms and Conditions have been induced by any representation, statement, warranty or agreement other than those expressed in them. These Terms and Conditions and the Partner Agreement may be modified by DataCore in its sole and absolute discretion without Participant’s consent. DataCore will provide thirty (30) days’ advance notice of such change. If Participant disagrees with any such change, its sole recourse shall be to terminate the Partner Agreement and these Terms and Conditions in accordance with their respective terms.
(n) Counterparts. The Partner Agreement (if any) may be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument regardless of whether the signatures appear on the same page.